The courts should remain defenders of fundamental rights and personal liberties. When the Facebook ban was issued, the court appeared to be playing to the gallery of populist radicals

A long time ago, when I was a college student in the jihadi era of Ziaul Haq, I had a sitting with late Dr Eqbal Ahmad along with a few friends. We asked a very basic question about why, in Pakistan, we had not been able to see a democratic order flourishing. Dr Eqbal’s answer was brief and educative, and I summarise here for the benefit of the readers. All social institutions can be broadly divided into two categories. One, law enforcement institutions that try to enforce law and order and, second, public opinion institutions that give a voice to the opinions of the commoners and hence act as a check on any transgressions made by the law enforcing institutions, as absolute power corrupts absolutely.

In Britain, both law enforcement and public opinion institutions evolved side by side and hence they remained in a harmonious relationship during the 18th and 19th centuries. When the British colonised India, they brought their highly developed law enforcement institutions, like the police and the army, to India but did not usher in their public opinion institutions like their political parties and media. Consequently, in India, law enforcement outmatched the power of restraining public opinion institutions. The mass movements of Gandhi and other populist leaders helped the growth of public opinion bodies in mainland India. However, on Pakistan’s side, no such institutions could be developed while the law enforcement intuitions continued growing in power and influence.

Using Eqbal’s framework is insightful and we can conclude that political parties, independent media and powerful judiciary are the most important constituents of the check and balance system of any political order. In Pakistan, the political process has suffered due to the continued mismatch between law enforcement and public opinion making institutions.

History throws opportunities at all societies to correct the imbalance that exists, as nature likes a state of equilibrium, both in the physical world and social systems. When the media and civil society launched a struggle for the restoration of the chief justice (CJ) in 2009, I could see that finally Pakistani society was also yearning for change. Braving a chilly and rainy day, I along with my family also joined the protesters who had gathered outside Pakistan’s High Commission in London to demand the immediate restoration of the CJ of Pakistan.

After the shoddy Dogar court was replaced by the deposed judges, Pakistani society moved a step further in establishing some balance between the two categories of institutions. The judicial activism in cases involving corruption, nepotism and gross violations of rule of law seemed like a positive first step on a journey of 1,000 miles. It was also encouraging to note that the judiciary had become more tolerant of criticism done in good faith and showed sensitivity to popular perception. Listening is one of the most important skills for organisational growth and earning respect. When the reappointment of Justice Ramday was widely condemned, the Supreme Court (SC) very graciously reconsidered its position and did not make it a matter of prestige.

Against this backdrop, when the honourable judges of the superior courts take steps that appear ill advised and send wrong signals, it is important that we air our opinions in good faith. The first disappointment from the reincarnated judiciary that struck me was its banning order of Facebook. The Lahore High Court, like many elders belonging to the older generations, seemed to be out of sync with the importance of social networks in the lives of the younger generation. One of my friends then commented that if a passenger is found uttering some blasphemous words on an aeroplane, the honourable judges would order that all flights be banned. Social networks are a medium of communication like the pen, paper and keyboards. You do not ban the medium if someone uses it for communicating words that sound awful. The only recourse is to turn away from that site and not access it.

There are thousands of sites that are used by our zealots for posting their messages and material. Recently, in the UK, a court issued an injunction for the privacy of a footballer’s name but it was soon released on a Twitter page. Social analysts commented that the honourable courts needed readjustment of their vision and outlook as the fast moving technological world, like time and tide, waits for nobody. Historically, kings and princes have worn the title of ‘defender of the faith’. The courts should remain defenders of fundamental rights and personal liberties.

When the Facebook ban was issued, the court appeared to be playing to the gallery of populist radicals. A judge has to remain beyond any bias of race, political affiliation and faith. It is therefore important that faith related matters be left to the government.

More recently, the CJ took suo motu notice when Atiqa Odho was let off by customs authorities after two bottles of liquor were found in her possession at Islamabad airport. The breaking news almost broke my heart. Not only could I see gender bias and personal grievance in this step but its timing also looked appalling.

Ever since Saleem Shahzad was murdered under very suspicious circumstances, I was hoping that a suo motu notice was in the offing. The media had played a pivotal role in keeping the restoration of the judiciary movement alive and seeing it through to its successful conclusion. As the CJ’s removal was a historic moment for making a break with the past and burying the doctrine of necessity for good, the murder of Saleem Shahzad is the moment for the media to reclaim its independence and hence ensure that public opinion intuitions have a powerful, overseeing role in the scheme of things.

The coalition government, with a nice collection of leaders that once raised slogans of ‘Asia is red’, is busy sweeping Abbottabad, Mehran base, Saleem Shahzad and Benazir under the carpet. Only Nawaz Sharif is making some noise amidst the deafening silence of our mainstream politicians. All eyes were however glued on the SC for justice. But the CJ considered two bottles of liquor more important than the spilled blood of a young journalist. The suo motu over the Rangers’ killing of Sarfaraz Shah and the resulting removal of the Rangers and police bosses has come as some reassurance. But the real litmus test is Saleem Shahzad’s case.

The whole world is keenly watching and would like to see whether alcohol is thicker than blood.

The writer teaches in the UK and is the founding member of Rationalist Society of Pakistan. He can be reached at hashah9@yahoo.com

Source: The Daily Times

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